TABLE OF CONTENTS

PRINT May/June 2020

HARM OF THE LAW

Coronavirus-related riot, Poggioreale prison, Naples, Italy, March 9, 2020. Photo: S Laporta/Kontrolab/IPA/SIPA/Shutterstock.

THE ASYMPTOMATIC SPREAD of Covid-19 has revealed the vast gulf between policing people and protecting them. Whether controlling crowds of travelers waiting to be screened at airports or lurking near New York subway turnstiles to catch fare beaters and send them to jails, where the virus is endemic, law-enforcement personnel are creating, rather than containing, health risks. Conversely, as some jurisdictions, like Philadelphia, have ceased to detain people for nonviolent crimes, we are afforded the opportunity to ask whether, once the crisis abates, arresting people for low-level offenses can ever again be considered to enhance public safety.

When variations on the word police first entered anglophone political philosophy in the eighteenth century in the writings of William Blackstone, Patrick Colquhoun, and Adam Smith, a gulf between police and protection would have been unintelligible. Police referred to the forward-looking prerogative of the sovereign, the patriarch, whose duty was to protect by wielding that prerogative. What he protected was his household, with its multifarious members and their wide-ranging concerns. (The Latin domus, “household,” is the root of both domestic and dominate. The dominus, “householder,” related to the domus as the governor to the governed.)

As a political unit, the household was elastic. It might be a tiny fief or a sprawling proto-state. When it came to protection, that elasticity was useful: The governed consisted of both people and things. Though today the household is conceptualized as a place, the older concept emphasized relationships, a hierarchy of allegiances and obligations. In early modern political philosophy, the capacity to protect was authorized by the sovereign’s ability to identify present and future threats to the safety of his household—and to determine how to squelch them. By protecting the household in this way, he aimed to maximize its welfare. Police referred to this process, the governance of an infinite miscellany of objects that might imperil, or enhance, the household’s welfare.

Over the eighty-odd years between Adam Smith writing about police and Marx getting chased out of Germany by them, something dramatic shifted. Police went from an activity to an institution.

We don’t use the term household exactly the same way today. Now, we tend to use a word with Greek roots to mean roughly the same thing: economy. Thus, as the legal scholar Markus D. Dubber has suggested (quoting Blackstone, who codified these ideas in 1769), “Policing meant governing the state as a household for the sake of its ‘public police and oeconomy.’” If the concept of the household implied the existence of a householder or patriarch, in contemporary usage economy—without police attached to it—disavows any sense of who governs the economy, and how, or why.

The divergence between police and protection began in the eighteenth century. At the very moment philosophers developed a concept of police as conjoined with economy, epochal transformations loomed for economies and states alike. The era was the age of revolutions; it was the birth of capitalism. Now, advancing welfare took on a new, relational cast—and that relation was zero-sum. Maximizing at one pole meant immiserating at the other. Welfare for some meant deprivation for most.

Implementing this social logic required altering everyday life: extinguishing customary rights and perquisites, blocking access to commonly held resources and otherwise fallow fields. Whereas traditionally the fens had provided fowl for sustenance and the forests tinder for warming hearths, now fen and forest would be enclosed and privatized, measured and parceled. They became inaccessible to those who had long lived among them, those who nurtured them and were nurtured by them. Meager wages afforded to the emerging proletariat would no longer be supplemented by what their grandparents had commonly shared. In fact, these proletarians were put to work draining the fens and felling the forests on which their survival had depended.

How could such a manifestly unjust situation be produced, be maintained? Police.

“All the organs of the state become ears, eyes, arms, legs, and means by which the interest of the forest owner hears, sees, appraises, protects, grasps and runs,” wrote the young Karl Marx in 1842, thinking of the Prussian forest police. Making forest ownership fruitful relied on a science of quantification, of political economy, but also a science of social control, of police. In philosophy, there was not much difference between the two. In reality, police would become a distinct professional sphere.

Over the eighty-odd years between Adam Smith writing about police in Scotland and Marx getting chased out of Germany by them, something dramatic shifted. Police went from an activity to an institution. Its purpose was to make the worker productive. In the factory, the worker who dared to take home cast-off scraps was branded a thief. Leisure became a luxury. Pauperism and vagrancy—idleness—became crimes. “The police mandate,” observes the political theorist Mark Neocleous, “was to fabricate an order of wage labor and administer the class of poverty thereafter.” Invidious social distinctions—like race—that continue to structure our lives nestled in differential police practices across these categories.

What does it take to manage an economy? Thinking through police allows us to connect the household to the factory, the prison to the plantation, the city to the colony. These all require their own internal planning and management—i.e., political economy—in order to be assembled into the heterogeneously constituted and unplanned world system of capitalism. In the present, this system is faltering. Police thus far remain resolute. In their steadfast devotion to maintaining our obsolescent order, they continue to serve old warrants and mete out petty charges that could become death sentences as the novel coronavirus rampages through jails, prisons, and detention camps.

Police power as the protection of the welfare of the household is an idea ineradicably bound up with patriarchy. If there is anything salvageable in this older sense of the term police, it lies in the concern for present and future threats to a common rather than individual well-being. As heavily armed cops around the globe corral the panicked and the sick, enforce curfews, and repress flickers of “civil unrest,” all while continuing routine law enforcement, our paradoxical imperative seems as clear as it is urgent. The present demands a police power that can protect collectivities from police.

Stuart Schrader is the Associate Director of the Program in Racism, Immigration, and Citizenship and a Lecturer at John Hopkins University. He is the author of Badges Without Borders: How Global Counterinsurgency Transformed American Policing (University of California Press, 2019).